2019 PLP (C (PLC(CS))

SHAKEEL AHMAD, J.

Through the instant constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner Muhammad Qureshi has sought the following relief:- It is therefore humbly prayed that on acceptance of the present writ petition the respondents may kindly be directed to cancel the appointment order of respondent No. 6 and to appoint the petitioner against the subject post or any other appropriate relief may be given that deem fit by this Hon'ble Court in the interest of the petitioner.

2. Brief facts of the case are that father of petitioner namely Muhammad Ayub Qureshi was posted as the work supervisor (BPS-9) in C and W Division, D.I. Khan and stood retired on 14.9.2015, after attaining the age of superannuation. The petitioner submitted an application to the respondent No.5 for appointment against the post vacated by his father but all his efforts in this respect proved to be a wild goose chase. The contents of the petition further reveals that father of the respondent No.6 was serving as S.D.O in C and W Division, D.I. Khan and he maneuvered the selection process and succeeded to get the appointment order of the respondent No.6 as work supervisor in C and W Division, D.I. Khan, hence, this petition.

3. It was argued by the learned counsel for the petitioner that petitioner possesses the requisite qualification for appointment as work supervisor (BPS-9), however, the impugned post was advertised in a local newspaper and the respondent No.6 was appointed as work supervisor BPS-9 without conducting test and interview at the behest of his father Javed Rahim who was serving as S.D.O in C and W Division, D.I. Khan, therefore, impugned order dated 16.9.2015 is liable to be set aside.

4. As against that learned counsel representing the respondent No.6 argued that the post in question was advertised in the local newspaper, where against 04 candidates including respondent No.6 applied and participated in open competition and after conducting proper test and interview, he was selected on merit, therefore, no illegality or irregularity was committed and prayed for dismissal of the writ petition.

5. Arguments heard and record perused with the able assistance of the learned counsel for the parties.

6. Vide order dated 21.3.2018, learned Assistant Advocate General was directed to produce the original record and in pursuance thereof he produced the same.

7. The filling of the said post was required to be preceded by an advertisement in the press notifying availability of the said post, inviting applications from all the eligible candidates and the consequent recommendations of the Departmental Selection Committee as a result of the requisite testing of all the qualified applicants, as required under 5th proviso of Rule 10 of Khyber Pakhtunkhwa Civil Servants (Appointments, Promotion and Transfer) Rules, 1989. In order to show transparency, the Government of Khyber Pakhtunkhwa, Information and Public Relations Department, with the approval of competent authority promulgated the advertisement/print Media Policy, 2009. Clause (V) of the said policy deals with the vacant post, which reads as under. "Advertisement relating to vacant posts upto BPS-10 will be released to two newspapers i.e. one provincial and one local of the target area. Similarly advertisement for the post of BPS-11 and above will be released to the newspaper i.e. two national and one provincial level by Khyber Pakhtunkhwa Public Service Commission as per Government policy."

8. We noted that neither the said rules nor Government approved policy were followed, as admittedly, the availability of the post was never advertised in two newspapers i.e. one provincial and one local of the target area as required under the policy referred to above, the post in question was advertised only in one local newspaper and obviously, in the absence of record of written test and interview and attendance sheet of the contesting candidates, it can safely be held that there was no question of any examination being held by Departmental Selection Committee and that the candidates shown in the minutes of meeting of the departmental selection/promotion committee were dubious.

9. Before coming to the merits of the case, it may be re-called at this stage that the learned Assistant Advocate General and representative of the department, while speaking from record, has admitted that the record of the test, interview and attendance sheet of the contesting candidates are not available on record. They also admitted that father of the respondent No. 6 / appointee was serving as S.D.O in C & W Department, D.I. Khan during the relevant days.

10. When we consulted the record it transpired that the impugned post fell vacant on 14.09.2015, it was advertised to be filled through initial recruitment in the local newspaper on 05.09.2014. Perusal of the contents of advertisement reflects that test and interview of the short listing candidates were to be held on 14.09.2015, and case of respondent No. 6 was approved for appointment on the same day i.e. 14.09.2015, as is reflected from the minutes of Departmental Selection/Promotion Committee held on 14.09.2015 and his appointment order was issued on 16.09.2015.

11. The post in question fell in BPS-09 and as per Khyber Pakhtunkhwa Civil Servants (Appointments, Promotion and Transfer) Rules, 1989, and ibid Policy the availability of the said post was never advertised in the press or in any other manner, therefore, it can safely be held that on 14.9.2015 the candidates including the respondent No. 6 had never been tested, interviewed or examined by the Departmental Selection Committee or by anyone else for that matter and that he maneuvered his appointment to the post in question by exerting the influence of his father being posted as S.D.O in C & W Department, D.I. Khan in complete disregard of law and requirement of merit and transparency, therefore, what had been secured by the respondent No. 6 was an illegal gain, therefore, plea of locus poenitentiae is also not available to him. It is sad to observe that thousands of people are rendered jobless and tens of thousands of families are rendered destitute similarly because public functionaries accommodate people of their own choice. It is tantamount to creating nothing but false sense of achieving employment. Action requires to be taken against those who are guilty of making illegal appointments.

12. Before parting with the judgment, it is important to mention here that the object of the establishment and creation of Courts of law is to dispense and foster justice and to right the wrongs. This purpose can never be completely achieved unless the injustice done was undone and unless the Courts stepped in and refused to perpetuate what was patently illegal, unjust, unfair and unlawful. In this behalf reference may be made to the cases reported as Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236) The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331 at 350) Syed Nazim Ali and others v. Syed Mustafa Ali and others (1981 SCMR 231) Wali Muhammad and others v. Sakhi Muhammad and others (PLD 1974 SC 106) Tufail Muhammad and others v. Raja Muhammad Ziaullah and others (PLD 1965 SC 269), Khiali Khani v. Haji Nazir and others (PLD 1997 SC 304), Abdul Haq Indhar and others v. Province of Sindh and others (2000 SCMR 907) and Farzand Ali v. Province of West Pakistan (PLD 1970 SC 98).

13. We, therefore, conclude that appointment in question was illegal and unlawful, contrary to Khyber Pakhtunkhwa Civil Servants (Appointment and Promotion and Transfer) Rules, 1989 and approved policy of the advertisement print Media Policy, 2009 and void ab initio, therefore, the same is laid to rest. The respondents are directed to fill post in question afresh through advertisement in accordance with law as discussed above. ZC/353/P Petition allowed.